Supreme Court Collegium

The present practice of selection of Judges for Supreme Court & High Court by "Supreme Court Collegium" is neither authorised by Constitution nor by any Act of Parliament.

• The Collegium system was evolved through Supreme Court judgments in the Three Judges Cases. But not by a Constitutional provision or by any Act of Parliament.
• The inception of the collegium system was well-intentioned. In all fairness, it did solve the problem of excessive executive interference. But on the whole, the collegium system is a solution which has proved much worse than the disease. Judges are today chosen on undisclosed criteria in largely unknown circumstances. It is remarked that it is one of the best-kept secrets in the country. The system is completely opaque.
• The Collegium system of judicial appointments has resulted in incompetent, inefficient, ethically compromised individuals being appointed as judges.
• The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court. 
• The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”
• The NJAC (National Judicial Appointments Commission) was established by amending the Constitution. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.
• The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. 
• If politicians are involved, what about judicial independence? The judiciary representatives in the NJAC - the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.
• The rationale of having the Commission instead of the collegium system is to strengthen the quality of appointments made, promote diversity and sustain public confidence in judicial system.

My View:

India is a democratic country and political winners in elections will rule the nation. They have to have a say in every aspect of country's administration, including judiciary appointments within the frame work of constitution, laws, rules and procedures. The essence is merit & transparency. 

The collegium suffers from: (1) It is neither constitutional nor in compliance of any Acts. (2) No methodology for selection of candidates. (3) It doesn't provide opportunity to all eligible candidates for competing in the selection process, the essence of a democracy. (4) Group of judges sitting in closed room and announcing the selected persons names, without any supporting material, doesn't impress any one.

Constitution has accorded SC extraordinary power of making laws by a judgement only to award justice to the needy but not for usurping powers for appointment of judges not specifically granted by Constitution or Parliament. The present system of Collegium makes Union Law Ministry, a mere secretariat to type out Judges appointment orders is unacceptable. It must have a larger role.

I am sure in the past two decades several meritorious candidates lacking right connections must have missed the deserving opportunity to become Judge. This has lead to sub-standard judiciary today. Lacking authorization, process & transparency Collegium system must be disbanded immediately.

"Among the four pillars of democracy Executive, Legislature, Judiciary and Media - 

none can be taller than Executive"

Open War between SC & Centre

Times of India dated Aug 13, 2016

The Supreme Court's frustration over its eightmonth-long face-off with the Centre found expression in an open courtroom on Friday Aug 12, 2016 with a bench headed by India's chief justice T S Thakur launching a scathing attack on the government, accusing it of bringing the judiciary to a standstill by stalling the appointments of judges to high courts.

Earlier in October 2015, SC struck down the National Judicial Appointments Commission (NJAC) Act. The NJAC was an attempt by the political class to end the apex court's monopoly over appointment of SC and HC judges.

"There are 478 vacancies in HCs, which is 44.3% of the total strength of judges. HCs have 4 million cases pending. The entire system has collapsed. By the time an appeal can be heard, the accused would have already served a life sentence,“ the CJI told Attorney General Mukul Rohatgi.

The CJI gave Rohatgi a list of 74 names sent by the collegium for appointment and asked him to find out where the proposal was stuck. “If there is adverse material against a person recommended for appointment, please send back his name,“ he said. We will consider the objection. It can be dealt with. That is a legal process. But do not keep sitting on the proposals,“ the CJI said. Justice Thakur cracked the whip after finding out that his tearful appeal to the government in April, to speed up appointments, had not worked. The CJI said, “This log jam in appointment of judges to HCs is unacceptable.There is a stage when we have to ask for accountability. Where is the file stuck for over eight months?"

My View:
Judges appointing judges through Collegium is not only illegal but also unconstitutional. Central Government can't be just for typing and printing of appointment orders body for SC & HC judges appointments selected by collegium which is not a constitutional body and doesn't have even a secretariat. Collegium of judges came into existing through a SC Judgement in 1992 and continuing eversince with its illegal operations without accountability. Judiciary has to be independent after appointments and in their working but appointments is the prerogative of elected executive i.e. Union Government through a set transparent procedure with opportunities to all eligible candidates. In the system of collegium those eligible candidates who are not recommended by members of collegium (judges) will never even get considered undermining principles of democracy.

Today almost all the judges are appointed during Congress led UPA government and their inherent loyalty is towards Congress only. BJP led NDA government will not allow appointment of Congress lawyers as judges, by hook or crook. Hence this stalemate. A tit for a tat. While SC struck down NJAC Act, Centre is retaliating by keeping judges appointment file pending for nearly a year. In the meantime litigants are subjected to abnormal delays and existing judges are terribly loaded. Setting aside National Judicial Appointments Commission (NJAC) Act enacted by parliament by SC, in Oct 2015 in the pretext of some technical issues is nothing but safeguarding their illegally and unconstitutionally acquired powers for appointment of judges in the name of collegium. Courts are meant for interpretation of laws, redressal of litigant grievances while preserving the basic character of constitution. Overstepping to other related areas without expertise and machinery is ridiculous. It would be interesting to see how this matter gets closed properly.

In a Democracy Elected Executive, Parliament, Judiciary and Autonomous Institutions must learn to work within their domain, respect and fear other Institutions. Then only systems will work properly. Otherwise stalemates and collapses would be inevitable leading to anarchy. 

Among all the institutions in a Democracy, Elected Executive stands taller than others.